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Comments adopted by the CEACR: New Caledonia

Adopted by the CEACR in 2021

C094 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to indicate the measures contemplated to ensure the inclusion of labour clauses in public contracts for supplies and services. The Committee notes the entry into force on 1 January 2020 of Decision No. 424 of 20 March 2019 issuing regulations on public procurement, replacing Decision No. 136 of 1 March 1967 issuing regulations on public procurement. However, the Committee notes that Decision No. 424 and sections 5 and 8 of the General Administrative Terms and Conditions (CCAG) do not require the inclusion of labour clauses in public contracts and do not specify the terms of these clauses. If not, it is the provisions of the Labour Code of New Caledonia which apply. In this regard, the Committee refers the Government to paragraphs 110 and 117 of the 2008 General Survey on labour clauses in public contracts, in which it emphasizes that the essential element required by the Convention is the inclusion in the text of the public contract of a labour clause drawn up in the terms prescribed in Article 2(1) and (2) of the Convention. The Committee observes that a labour clause has to constitute an integral part of the actual contract signed by the selected contractor and that the inclusion of labour clauses in the general conditions or specifications of tender documents, even though required by Article 2(4) of the Convention, does not suffice to give effect to the basic requirement of the Convention set out in Article 2(1). The Government also indicates that there are no specific legislative provisions preventing particular documents from deviating from section 8 of the CCAG, even though certain provisions of section 8 of the CCAG (concerning hours of work, pay or conditions of work) which form part of the Labour Code of New Caledonia are fully binding on employers, who cannot depart from them. The Government is planning to transpose into law six new CCAGs applicable to public procurement, approved by inter-ministerial orders and published in the Official Journal of 1 April 2021, including the CCAG applicable to public contracts for ordinary supplies and services, section 6 of which establishes provisions on protection of the labour force and conditions of work, which every contractor must respect. Recalling that the Convention does not necessarily require the adoption of new legislation but can be applied through administrative instructions or circulars, the Committee hopes that the Government will take the opportunity afforded by the legal transposition of new CCAGs applicable to state procurement to bring the national legislation into full conformity with the provisions of the Convention, particularly with regard to: the terms of the labour clauses to be included in public contracts to which the Convention applies, after consultation with the organizations of employers and workers concerned (Article 2(3)) and advertising specifications or otherwise, to ensure that persons tendering for contracts are aware of the terms of the clauses (Article 2(4)). The Committee also requests the Government to provide detailed, up-to-date information in its next report on any measures taken or envisaged to give concrete effect to the essential provisions of the Convention, namely the inclusion of labour clauses in public contracts, as provided for by Article 2 of the Convention, and to provide the Office with information on any progress made in this respect.
Application of the Convention in practice. The Committee notes the information provided by the Government on the application of the Convention, particularly the indication that the Government has implemented a number of awareness-raising actions for public stakeholders and enterprises regarding changes in the regulations. The Government adds that in July 2018 a “Guide to the labour-related aspects of public procurement” was published and made available to public procurement stakeholders. However, the Committee notes that this guide does not contain any reference to conditions of work for workers engaged in the performance of public contracts and also does not address the incorporation of labour clauses of the type prescribed by Article 2 of the Convention. It also notes the Government’s indication that the summaries of the reports of the inspection services are not refined enough to enable the extraction of information on violations relating to labour clauses in public contracts. Recalling paragraphs 22, 98 and 99 of the 2008 General Survey referred to above, the Committee draws the Government’s attention to the fact that Article 5 of the Convention requires the establishment and maintenance of an adequate system of inspection, as well as the imposition of specific remedies and sanctions as means of ensuring the implementation of the terms of labour clauses. The Committee once again requests the Government to send copies of public contracts which contain labour clauses and to provide information on the application of the Convention in practice, including on the establishment and use of an adequate system of inspection and sanctions, by the withholding of contracts or otherwise, in the event of failure to observe and apply the provisions of labour clauses (Article 5).

C188 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first examination of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage. The Committee notes the efforts made by the Government and the social partners to implement the Convention.
Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of the rights of fishers set out in the Convention. In this regard, the Committee refers to the Resolution concerning maritime labour issues and the COVID-19 pandemic, adopted by the Governing Body at its 340th Session (GB.340/Resolution (Rev.2)), in which Member States are called upon to take measures to address the negative effects of the pandemic on the rights of fishers, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on fishers’ rights.
Implementing measures. The Committee notes the Government’s indication that the Convention is mainly implemented through territorial Act No. 2016-5 of 11 February 2016 on the conditions of service of seafarers, inserted in sections Lp. 613-1 et seq. of the New Caledonia Labour Code (CTNC). The Committee notes that section 1 of the territorial collective labour agreement for agricultural undertakings provides that it determines the relations between employers and employees or apprentices in agricultural occupations, undertakings and activities in New Caledonia, classified under the following groups of the French classification of economic activities (Nomenclature d’Activités Française (NAF)): - 01: Agriculture, Hunting; - 05: Fishing, Aquaculture. All the activities listed in these two groups are covered, irrespective of the legal form or status of the employing person or entity. Noting that the Government does not refer to this collective branch agreement in its report, the Committee requests the Government to provide detailed information on the conditions for its application to the commercial maritime fishing sector. The Committee requests the Government to provide statistical information on the number and type of fishing vessels registered in New Caledonia and on the number of fishers employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch.
Articles 1–6 of the Convention. Definitions and scope of application. The Committee notes that the Government does not provide information on the definition of the term “fisher”. However, it notes that section 1(1) of territorial Act No. 2016-5 of 11 February 2016 on the conditions of service of seafarers defines the term “mariner (marin)” as any person, identified by the maritime authority as a professional mariner, who signs a fisher’s work agreement with a view to working on board a vessel in a job relating to the operation of such vessel. It defines “seafarer” as any mariner or any other person exercising a professional salaried activity on board a ship on behalf of the shipowner or any other employer. Persons who intervene occasionally and for a short period on board a ship are not considered to be seafarers. The Committee recalls that the Convention applies to all fishers and all fishing vessels engaged in commercial fishing operations (Article 2), and that the term “fishers” mean every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch, but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers (Article 1(e)). The Committee requests the Government to specify whether all fishers are considered to be “mariners” within the meaning of the national legislation. The Committee further requests the Government to provide information on the definition of “commercial fishing” in the legislation of New Caledonia. The Committee notes the Government’s indication that the law of New Caledonia distinguishes between different categories of fishers solely in order to define the minimum qualification levels required relative to the size of the vessel and the distance that it operates from the coast. Noting the Government’s indication that a draft text to modernize the regulatory framework is currently being drawn up in this regard, the Committee requests the Government to provide a copy of such text when adopted..
Article 8(2) and (3). Responsibilities of fishing vessel owners, skippers and fishers. Responsibilities of the skipper. The Committee notes the information provided by the Government that the responsibility of the skipper is based on section L. 5412-3 of the Transport Code, which provides that the master has responsibility for the normal needs of the vessel and the voyage, and on sections Lp. 261-1 to Lp. 261-3 of the CTNC, which cover the obligations of the employer in respect of occupational safety and health. The Committee also notes the Government’s indication that a draft text to modernize the regulatory framework is currently being drawn up in this regard. Noting that these provisions are very general and do not specify the extent of the responsibilities of the skipper and the latter’s freedom with regard to the fishing vessel owner to take any decision which, in the professional judgement of the skipper, is necessary for the safety of the vessel and its safe navigation and safe operation, or the safety of the fishers on board, the Committee requests the Government to provide detailed information on the measures taken or under preparation to give full effect to Article 8(2) and (3).
Articles 10–12. Medical examination. The Committee notes the Government’s indication that sections R.263-11 to R.263-13 of the CTNC give effect to Article 10 of the Convention. The Committee notes, however, that these sections only cover the issue of the organization of occupational medicine. The Committee notes the Government’s indication that the nature and frequency of medical examinations, their form, content and period of validity, are defined by sections R.263-11 to R.263-18 of the CTNC. However, the Committee notes that the version of these sections referred to by the Government is no longer in force. It further notes the Government’s indication that the conduct of medical examinations by duly qualified medical practitioners is provided for by the application of sections Lp.613-3, Lp.263-1 to Lp.263-13 and R.263-1 to R.263-19 of the CTNC. The Committee notes, however, that a number of these sections do not specifically cover medical fitness requirements on board vessels. The Committee notes the Government’s indication that there are currently no regulatory provisions setting out specific requirements for the medical examination of fishers working on board vessels of 24 metres in length and over, or on vessels which normally remain at sea for more than three days. It also notes that there is no regulatory provision requiring the medical certificate to explicitly state that the hearing and sight of the fisher concerned are satisfactory for the fisher’s duties on the vessel, and that the fisher is not suffering from any medical condition likely to be aggravated by service at sea or to render the fisher unfit for such service or to endanger the safety or health of other persons on board. Finally, the Committee notes that a number of provisions of the French Transport Code cover the medical fitness requirements of mariners and seafarers and are applicable to New Caledonia. In particular, in its comments adopted in 2020 on the Maritime Labour Convention, 2006, as amended (MLC, 2006), the Committee noted that section 28 of Decree No. 2015-1575 of 3 December 2015 provides that the regulations applicable in New Caledonia regarding occupational medicine establish the conditions under which the medical examination for fitness for navigation referred to in section 1 is carried out and under which a medical certificate for fitness for navigation is issued, in compliance with international Conventions, and without prejudice to the support provided by the State under the conditions provided for in section 26 of Decree No. 2015-1574 of 3 December 2015 on the seafarers’ health service. The Committee notes the Government’s indication that, pending the adoption of a future territorial Act on the subject, the currently applicable requirements are those of the State. The Committee requests the Government to provide detailed information on the implementation of the legislation currently in force in the fishing sector and to indicate the measures under preparation to give full effect to Articles 10–12.
Articles 13 and 14. Manning and hours of rest. Adequate period of rest in the event of suspension of the schedule of hours of rest. The Committee notes that section Lp.613-37 of the CTNC allows maximum hours of work to be exceeded on the order of the master in the event of an emergency to ensure the immediate safety of the vessel, passengers and cargo, to give assistance to other ships or persons in distress at sea or to recover fishing gear lost at sea. The Committee notes the Government’s indication that there is no regulatory provision requiring fishers to receive compensatory periods of rest in such cases. The Committee recalls that the Convention provides that, as soon as practicable after the normal situation has been restored, the skipper shall ensure that any fishers who have performed work in a scheduled rest period are provided with an adequate period of rest (Article 14(4)). The Committee requests the Government to take the necessary measures to ensure that fishers in practice receive compensatory periods of rest under the conditions set out in Article 14(4).
Article 15. Crew list. The Committee notes that the Government refers to section L. 5522-3 of the Transport Code under which a crew list identifying the seafarers on board each ship shall be made available to any competent authorities of the flag State and of the port State upon request. The characteristics of the crew list and the procedures for its maintenance by the master of the ship, as a function of the type of ship, are set out in Decree No. 2015-406 of 10 April 2015. The Committee notes that section 11 of this Decree provides for its application to New Caledonia, with the exception of ships over which New Caledonia exercises competence in matters of maritime safety. The Committee requests the Government to provide detailed information on the extent of New Caledonia’s competence for maritime safety in relation to fishing vessels and to indicate, where appropriate, for the categories of fishing vessels under its competence, the applicable measures in relation to crew lists. The Committee requests the Government to provide a standard crew list form in use.
Article 16(b) and Annex II. Conditions of service. Fisher’s work agreement. Minimum particulars to be included. The Committee notes that section Lp. 613-7 of the CTNC sets out the particulars that shall be included in the seafarer’s employment agreement. However, the Committee notes that a number of the minimum particulars, set out in Annex II of the Convention, are not specified, including the voyage or voyages to be undertaken, if this can be determined at the time of making the agreement; the provisions to be supplied to the fisher, unless some alternative system is provided for by national law or regulation; the protection that will cover the fisher in the event of sickness, injury or death in connection with service; and the minimum periods of rest, in accordance with national laws, regulations or other measures. The Committee requests the Government to indicate the measures taken to give full effect to Article 16(b) and Annex II.
Article 18. Fisher’s work agreement. Availability on board to the fisher and to other concerned parties. The Committee notes the Government’s reference to section Lp.613-6 of the CTNC which provides that the seafarer shall receive an original copy of the signed contract prior to putting to sea. It also notes that the master keeps a copy of seafarer’s employment agreements on board a ship of more than 200 gross tonnage. A copy of the seafarer’s employment agreements in English shall be kept on board ships engaged in international voyages. The Committee recalls that Article 18, which provides that the fisher’s work agreement shall be carried on board and be available to the fisher and, in accordance with national law and practice, to other concerned parties on request, applies to all vessels, including those of fewer than 500 gross tonnes. The Committee requests the Government to indicate the measures taken to give full effect to Article 18.
Article 20. Fisher’s work agreement. Signature. The Committee notes that section Lp. 613-6 of the CTNC provides that the seafarer’s employment agreement shall be drawn up in writing in two copies signed by the seafarer and the shipowner. The Committee notes the Government’s indication that, where the fisher is not employed or engaged by a fishing vessel owner, there is no regulation requiring the fishing vessel owner to have evidence of contractual or similar arrangements, as required by Article 20 of the Convention. The Committee notes the Government’s indication that a draft text to modernize the regulatory framework is currently being drawn up in this regard. The Committee requests the Government to indicate the measures taken to give full effect to Article 20.
Article 22. Recruitment and placement of fishers. The Committee notes the Government’s indication that a public placement service has been established pursuant to the CTNC. The Committee notes that the Government has not provided information on the existence of private recruitment or placement services established on its territory, engaged in the placement of fishers, or on private employment agencies providing the same services. The Committee notes that the Private Employment Agencies Convention, 1997 (No. 181), has been declared applicable to New Caledonia. The Committee notes that, according to the information provided by the Government in its report on the application of the present Convention, the current CTNC does not contain any provisions respecting private employment agencies. The Committee requests the Government to provide statistical information on the number of fishers recruited or placed through public or private recruitment or placement services or through private employment agencies and, where appropriate, to indicate the measures taken to give full effect to Article 22.
Article 24. Payment of fishers. Transmission of payments. The Committee notes that section Lp. 613-38 of the CTNC provides that in the event of voyages of over one month outside the territorial waters of New Caledonia, the shipowner shall take the necessary measures to enable seafarers to transmit, at their request, all or part of their remuneration to their family, dependants or legal beneficiaries. The Committee recalls that Article 24 of the Convention does not limit this right to fishers on board for a period over one month outside the territorial waters of the State or territory of registration. The Committee requests the Government to take the necessary measures to give full effect to Article 24.
Articles 25–28. Accommodation and food. The Committee notes that section 215-1.01 of Division 215 and section 2 of Decision No. 119/CP of 26 November 2018 limit their scope of application to fishing vessels of 12 metres in length and over. The Committee notes that section 215-1.02(2) of Division 215 specifies that, for any vessel under 12 metres in length, the competent authority for the examination of plans and documentation shall determine the applicable provisions, taking into account the construction characteristics of the vessel and specific conditions of navigation. The Committee requests the Government to provide detailed information on the measures applicable to vessels under 12 metres in length. The Committee notes that the versions that are in force of Division 215 and Divisions 226 to 228 relating specifically to fishing vessels, as available on the website of the Directorate of Maritime Affairs, were last amended in 2011, before the Convention was declared applicable to New Caledonia. The Committee requests the Government to indicate whether further measures are being prepared to give effect to Articles 26 and 28 and Annex III of the Convention and to provide information on the consultations held for this purpose.
Articles 31–33. Occupational safety and health and accident prevention. The Committee notes the Government’s indication that Articles 31–33 are implemented through sections Lp. 261-1 to Lp.269-6 of the CTNC, which define the rules applicable in respect of occupational safety and health for all sectors of activity. These sections do not provide information on how this general framework is implemented specifically for the fishing sector. The Committee requests the Government to provide detailed information on the measures and action taken at the national level to give effect to the requirements relating to occupational safety and health and the prevention of occupational accidents in fishing, as set out in Articles 31 and 32, with an indication of the measures specifically applicable to fishing vessels of 24 metres in length and over normally remaining at sea for more than three days and, after consultation, to other vessels, taking into account the number of fishers on board, the area of operation, and the duration of the voyage. The Committee also requests the Government to provide information on the manner in which effect is given to the requirement that fishing vessel owners shall ensure that every fisher on board has received basic safety training approved by the competent authority.
Articles 34–37. Social security. The Committee notes the Government’s indication that section Lp. 421-3 of the CTNC guarantees fishers ordinarily resident in the territory and, to the extent provided in the regulations, registration with the social protection body. This is the responsibility of the employer or, failing that, the vessel owner. It also notes the Government’s indication that the general scheme applicable to any person registered with the social protection scheme guarantees that the fisher’s dependants benefit from social security under the same conditions as those applicable to other workers, including employed or self-employed persons, ordinarily resident in the national territory. The Committee notes that, in its comment adopted in 2020 on the application of the MLC, 2006, concerning the conditions for the registration of seafarers with the general social security scheme of New Caledonia, as established by territorial Act No. 2001-016, of 11 January 2002, as amended, the Government indicated that law of New Caledonia does not provide for the registration with the local social security fund of seafarers on board a ship registered outside New Caledonia. The criterion for social security registration is therefore the flag of the vessel and not the residence of the fisher. The Committee recalls that all fishers ordinarily resident in its territory, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory (Article 34). The Committee requests the Government to provide information on the laws and regulations that give effect to Article 34 of the Convention, indicating in detail the social security benefits granted to fishers, including fishers working on vessels flying foreign flags, who are ordinarily resident in the territory of New Caledonia. It requests the Government to indicate the branches of social security that are currently covered and whether measures are being prepared to achieve progressively comprehensive social security protection for all fishers who are ordinarily resident in its territory (Article 35). The Committee requests the Government to provide statistical information on the number of fishers currently registered with the general social security scheme.
Articles 40–44. Compliance and enforcement. The Committee notes the Government’s indication that the labour certification of fishing vessels and a vessel inspection regime are provided for in Decree No. 84-810 of 30 August 1984. The Committee notes, however, that while such Decree, in its version applicable to vessels within the competence of the State, contains several provisions on the inspection of fishing vessels, in relation to labour certification, the version applicable to vessels within the competence of New Caledonia, as it appears on the website of the Directorate of Maritime Affairs, does not contain the same provisions. The Committee notes the Government’s indication that jurisdiction and control are exercised over fishing vessels flying the national flag and that the system established to ensure compliance with the requirements of the Convention, in particular with regard to control measures, such as inspections, reporting, monitoring, complaint procedures, appropriate penalties and corrective measures, is based on various provisions of the CTNC and the Code of Civil Procedure. The Committee notes, however, that these measures, such as section Lp. 721-1 of the CTNC to which the Government refers, do not give effect to all the responsibilities of New Caledonia in relation to compliance and enforcement under Articles 40–43(1) of the Convention. The Committee notes the instruction note of 11 July 2017 determining the general framework for the procedure for the labour certification of vessels, which only covers certification operations related to the MLC, 2006. The Committee also notes that Decision No. 119/CP of 26 November 2018 on safety and standards of accommodation on board ships, and its implementing Order No. 2020-289/GNC of 25 February 2020, contain provisions relating to the inspection of ships, complaints by the crew and authorization of classification societies, without however making explicit reference to Convention No. 188. Finally, the Committee notes the Government’s indication that no foreign vessels are permitted to engage in fishing operations in the waters of New Caledonia. Inspections of foreign fishing vessels calling into New Caledonia can be carried out by the two qualified inspectors of the Maritime Affairs Service. The Committee requests the Government to provide detailed information on the measures taken to give effect to Articles 40–44 of the Convention in respect of fishing vessels registered in New Caledonia, with an indication of whether they relate to competences of the State or of New Caledonia. The Committee requests the Government to provide statistics on the number of inspections carried out on fishing vessels registered in New Caledonia or flying a foreign flag, as well as on the number of labour certification documents issued.
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